The Surprising Place Mueller Found Resistance to Trump

The strongest pushback against the president came from his own branch of government.

By Daniel Hemel and Eric Posner

Mr. Hemel and Mr. Posner are professors at the University of Chicago Law School.

April 23, 2019

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The White House on the night in May 2017 that James Comey was fired.CreditCreditDoug Mills/The New York Times

Nearly everyone interprets the exhaustive, nearly 450-page report from Robert Mueller as a story of presidential overreach. Convinced that Mr. Mueller’s investigation would embarrass his administration by revealing the extent of Russian influence on the 2016 election, President Trump attempted to undermine the special counsel’s probe.

But the report is actually a story of presidential weakness. Every time Mr. Trump tried to stop the investigation, the president was stymied by his own subordinates.

The president’s failures reveal the remarkable weakness of an office that the historian Arthur Schlesinger Jr. famously described as “the imperial presidency.” Mr. Schlesinger claimed that the separation of powers no longer protects us from presidential self-aggrandizement as intended by the founders. Congress rarely checks the president, preferring instead to delegate its powers to him. The judiciary, meanwhile, is too plodding an institution to respond to presidential abuses of power in real time.

The Republican Congress of 2017-18 neither checked nor balanced. Oversight committees seemed more interested in protecting Mr. Trump than in investigating him. Even after Democrats took control of the House this year, the administration’s refusal to hand over documents has hampered congressional inquiries.

The strongest pushback against President Trump came instead from a source never contemplated by the founders: his own branch of the government. The F.B.I. and the intelligence agencies opened their investigations of Russian interference in the 2016 election even before Mr. Trump took the oath of office. The president thought that he could quash this inquiry by dismissing James Comey, the F.B.I. director, but as the president’s strategist Steve Bannon reportedly cautioned, “you can’t fire the F.B.I.” Mr. Trump’s appointee as deputy attorney general, Rod Rosenstein, initiated the special counsel inquiry and appointed Mr. Mueller to lead it, while Attorney General Jeff Sessions — an early Trump backer — refused to “unrecuse” himself from the Russia investigation.

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Steve BannonCreditAl Drago/The New York Times

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Don McGahnCreditPool photo by Melina Mara

Even more surprising, resistance arose from key White House personnel. In June 2017, when Mr. Trump tried to remove Mr. Mueller, the White House counsel Donald McGahn refused to carry out the directive. The next month, when Trump tried to get Mr. Sessions to limit the special counsel’s jurisdiction, the White House deputy chief of staff, Rick Dearborn, declined to relay the order to the attorney general. Later in July 2017, when Mr. Trump told White House chief of staff Reince Priebus to demand Mr. Sessions’s resignation, Mr. Priebus refused. Mr. McGahn also disobeyed the president’s early 2018 directive to create a false paper trail obscuring an earlier effort by Mr. Trump to have the special counsel fired.

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Reince PriebusCreditJim Lo Scalzo/European Pressphoto Agency

The resistance to the president from within the executive branch is not a new phenomenon. Clashes between the president and cabinet officials date back to George Washington’s conflicts with his first secretary of state, Thomas Jefferson. President Richard Nixon’s national security adviser, Henry Kissinger, routinely disobeyed his boss’s instructions on matters ranging from press contacts to arms control talks. What makes the pushback to President Trump unique is that it has trumpeted its existence in the open.

While the strong resistance to Mr. Trump within the executive branch — and the rather weak pushback from outside — may defy traditional notions of separated powers, it is not hard to explain.

First, the aides who bucked the president’s efforts to interfere with the Mueller investigation had political and professional fates separate from Mr. Trump’s. For example, Mr. McGahn, a former member of the Federal Election Commission, had a lucrative partnership at the law firm of Jones Day to which he could return after his Trump administration stint — provided that he did not so sully his reputation while White House counsel that he would scare away clients or get himself disbarred.

Second, in several cases the specter of legal liability appeared to play a role. Mr. McGahn and Mr. Priebus often consulted their shared personal attorney when deciding to defy their boss. The shadow cast by the special counsel’s inquiry thereby contributed to defiance from within the White House, while this defiance also shielded the special counsel from presidential interference. For lawyers in the administration — including officials like Mr. Priebus who did not occupy a legal post but planned to return to law practice afterward — professional norms exerted an additional constraint. Disbarment for an attorney is career death.

Nor does the pardon power turn out to provide the president with carte blanche over the executive branch. The people before whom Mr. Trump dangled the possibility of a pardon could not be sure that the volatile president would follow through. A pardon, moreover, does not repair damages to one’s reputation.

Can the president evade these limitations by filling key posts with cronies? Not really. Filling posts with individuals whose only qualification is their loyalty produces less pushback but more bumbling. So far, Mr. Trump has oscillated between reliance on competent aides who have resisted his instructions and on yes men who have fumbled his orders.

In his great essay, Federalist Paper No. 48, James Madison famously warned that the mere “parchment barriers” of the Constitution could not prevent a descent into tyranny. What is mostly forgotten is that he feared the legislature more than the executive. As to the executive power, he said, “being more simple in its nature,” “projects of usurpation” would “immediately betray and defeat themselves.”

Whether or not that is true in every case, it was certainly so with Mr. Trump. By trying to obstruct an investigation that had the potential to embarrass his administration, he ensured only that the investigation would expand to encompass his desperate measures to stop it, bringing to light further evidence of the incompetence and moral rot of his leadership. These developments will make the president’s subordinates even less willing than ever to take a bullet for their boss.

Does this mean that we should be unconcerned about presidents who give little heed to ethics or law? Certainly not. Reliance on electorally unaccountable appointees and civil servants to check the president creates a whole new set of problems. As Mr. Trump himself has shown, presidents may try to undermine these people by publicly humiliating them, and — as we know from the history of the F.B.I. under J. Edgar Hoover — law enforcement may try to undermine presidents or other elected officials it disapproves of.

Our current institutional equilibrium may not be sustainable in the long run, but for the time being we should be grateful for it.